Issues of professionalism, professional practice, and knowledge in litigation lawyering

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Introduction

There is a timeless need to understand the meaning of “profession” and the sense in which “professionalism” is discussed within “profession”. The professional knowledge (PRK) is viewed as the tool for developing professionalism within a profession. Discussing the use of PRK in litigation lawyering (LIT), there is an attempt to resolve the confusion between the different categories of knowledge.

The meaning of profession and the profession of LLs

The definition of “profession” has its long history (Bacon, Groundwater-Smith, Nash & Sachs, 2000). Eventually, people can use their perceptions to think some of the elements of “profession”. The existence of a practical (real or virtual) context with an internal organization or the continuation and frequency of practice after prolonged training or in the purpose of capital gain could be only some of these determinative elements.

The “profession” of lawyers is regulated by the law. In Cyprus, the lawyers are registered with the Cyprus Bar Association, which issue renewable annual practicing licenses. Their registration requires a law degree, recognized by the Legal Council, the completion of a one-year practical training (bar), and the passing of exams. There is no dissociation between barristers and solicitors; any litigation lawyer (LL) performs the duties of both barrister and solicitor. Therefore, LLs prepare, manage, and present cases before the Courts. The practice of LLs, which is the litigation lawyering (LIT), is directed to the clients, to the Court, to the colleagues, to the other litigants, and to the society; it is multidimensional.

The meaning of professionalism and the professionalism in LIT

“Professionalism” in LIT refers to the methods for improving LIT. This improvement plan is challenging because it is attempted in a context of perceived “injustice” and disputes between litigants, or conflicts of defendants with the laws and the State. Additionally, the litigants or the defendants may have their own social or individual problems. Evidently, this picture does not reflect the stereotypical view that the profession of lawyers is an “ideal type” profession (Eraut, 1994). While maintaining a level of professional conduct in LIT or any similar “humanity professions” is difficult, creating “professionalism” is a process of perfection.

The multidimensionality has the meaning that LLs’ practices have multiple receivers (clients, Court, colleagues, litigants, society) and grounds (internal and external). The multidimensional professionalism (MP) can be internal (IMP) and external (EMP). The IMP concerns a private process of organization and control of the time and means to work, and it is more bureaucratic (Freidson, 2001). The EMP refers to the administration and presentation of the case before the receivers, in private or in public settings; it is rather behavioral. The behavior of LLs before the Courts is open, while their behavior within the lawyer-client relationship differs. Further, the relationship with a defendant client (criminal / public law) is different than the relationship with a litigant in a private dispute (civil/private law). A significant part of the legal ethics refers to the behavior of lawyers towards all the possible receivers; this is also reviewed by a disciplinary body, the head of whom is the Attorney General of the Republic of Cyprus. The advertisement of the profession is prohibited; so, the “professionalism” must be motivated, developed, presented discreetly and sparingly.

If any LL has these same means to operate as LL (registration, license, same regulations and ethical codes), the criteria for overcoming this commonality and judging that one LL is more “professional” than other (values of professionalism) are exigent. It is also difficult to approach these values of professionalism without adapting them to the characteristics or the idiosyncrasy of the profession. In this instance, this process of perfection in LIT should take into account the multidimensional, humanity, social, and discreet nature of LIT.

PRK as a value of professionalism

Although the preparation of a toolkit on “professionalism” in LIT undoubtedly should cover at least some hundreds of pages, there is one tool, which appears to facilitate this perfection process. This tool is the professional knowledge (PRK). Defining “professionalism” on the base of PRK does not cover all the aspects of “professionalism”. The PRK is described as a tool for the facilitation of the professionalism. Others can describe PRK as a process of continuous acquisition and implementation of knowledge, in a purpose of improving a profession. It might be a tool or a process, or a procedural tool; this is not of importance. The link between PRK and “professionalism” is the crucial point to understand the PRK. To see this link, we need to unlink the PRK from the meaning of PK.

Sometimes, PRK is determined as the experiential knowledge that the professional practitioners acquire in and because of their experience of performing their profession in practice. It may also be believed that PRK is unknown and inaccessible (but also indifferent) to the theorists of the same science because it is linked to the (boring) details of the practice. The PRK consists a determination given by reference to the situational context (profession) or the capacity of the carrier (professional), for “professionalism” and it must not be confused with the meaning of PK; it is not PK. The PRK, indeed, is supported as a distinct category of knowledge, but not as a kind of operational knowledge.

Namely, the professional practitioners need a body of knowledge which will enable them to perform their practical duties. This knowledge is the operational knowledge (OP). OP is familiar to all the professional practitioners, and it is not standardized; it is always changing, like the laws or the practice of each judge also change.

In LIT, this OP shall contain:

  • The TK of the substantive and procedural laws and the ethical codes, and
  • The PK of applying the laws in the specific cases and of the management of LL’s office.

The PRK is the knowledge of inventing and emphasizing values of professionalism when working on your existed OP, in purpose to develop and distinguish yourself from the other professional practitioners. The large law firms have “development management” departments, which work solely on PRK, as a distinct service. The PRK experts who work for lawyers have limited TK on law, but they are not lawyers. As concerns the legal profession, it tends to be multidisciplinary, while its multidisciplinarity may be regarded as a value of professionalism as well, among other values (like innovation). Therefore, the PRK, as the profession itself, may have its OP. Beyond the OP, any additional knowledge that the professional practitioners acquire from any other sources, may affect their practice, or not. In this instance, studying forensic psychology is a further knowledge for an LL, and not OP, but it could change the LIT positively; thus, using PRK, this additional knowledge could also be treated as a value of professionalism.

The above approach supports the views, firstly that the knowledge is just knowledge, and not a box, owned by someone, with specific content; it can be applied everywhere and by anyone. Secondly, the knowledge can be determined in many different ways, depending on what is the purpose of the determination each time and the general context of its reference. PK is relevant in discussions about “profession” or “occupation” (not the only relevant), but PRK is relevant in discussions about “professionalism” while these discussions do not take place always together.

The AK is also determined by reference to its situational context (academia) and its carriers (academics). However, to be an academic is also a specific profession, instead of being just the “theorist” of science. The AK is not the TK, but it is a kind of PRK (in this assignment), and for this reason, its categorization is viewed as unnecessary when discussing PRK. The OP of professional academics is expected to include more TK than PK because the academics serve this field of the science (of law), but some PK shall exist. The AK shall also contain the PK of being an academic, which is similarly unknown and inaccessible (and indifferent) to the practitioners of the same science (lawyers).

The science of law, as a base for the creation of categories of knowledge, refers to the TK and the PK. It also applies to the research knowledge (RK), which differs from both TK and PK. The purpose of all these science-oriented categories (TK, RK, PK) has nothing with PRK or AK. In contrast, if one focuses on PRK as science, this science would have its own TK, RK, and PK. Thus far, it was explained that there are the science-oriented categories of knowledge (TK, RK, PK) herewith referring to the science of law, and the PRK, which is discussed as a value for professionalism in LIT, but it can also be addressed as a separate science.

The differences between the science-oriented categories and the PRK as a value of professionalism

Any science, like law, has three fields: theory, research, and practice. The knowledge can be TK, RK, or PK, depending on the source and the way of its acquisition (theory, research, practice). The PK may be experimental up to the point that it applies the existed theory in practice to confirm, correct, or differentiate the theory, while it is often produced in theoretically unforeseen practical cases. It may also be viewed as technical because it requires skills, which are obtained through the practice, or as specialized because it is concentrated on a specific practice area.

On the other hand, the TK is general and abstract, and it can only set hypothetical scenarios. The generality of TK has nothing to do with its extension or its depth. It does mean that it cannot touch all the aspects of a complex and changing reality, even though the carriers of TK live in the society, and they use some limited experiential and experimental (empirical) RK or PK. Namely, TK has to be concrete and generalizable, so that to be able to apply in every practical situation. However, as it also previously discussed, social sciences remain social because they communicate with the social reality, while the practice, as a field of social science, is a robust social “sensor” for the whole science.

It seems that the contemporary social sciences try to leave the monopoly of TK and to find the ways to access and use the PK. The scientification of the PK is also provided as a skill for the competent professionals, who are conscious about their social – scientific role, thus as a value of professionalism. So, among multidisciplinarity, innovation, and other values of professionalism, the scientification of the PK could also be requested by a PRK expert. The scientification of the PK, as a sub-tool of PRK, satisfies the end of completion of the social science, and it could be a commonality for the professional academics.

In LIT, the dissociation between PK and TK is obscured; the tendency to theorize the PK is an integral part of the profession. For instance, the “case law” is a kind of theorization of the PK, which has been acquired by the management and presentation of the specific case before the Court. Consequently, the evolution of PRK focuses on how LLs can manage and use the case law for the further development of the profession. In this instance, the large law firms, which have “knowledge management” departments, encourage their LLs to write journal articles which are based on the domestic case law (particularly the case law caused by themselves) or to research where the case law accepts or rejects some legal theories. This professional value has some market value, while it enables the expatriation (and globalization) of the OP and the science of law in practice (Gibbons, Limoges, Nowotny, Schwartzman, Scott & Trow, 1994).

Conclusion

It is easy for anyone to get lost in any typological model of knowledge (Eruat, 1994) and to confuse the way of thinking about “knowledge”. Beyond all the epistemology of knowledge, indeed, knowledge is a complicated (cognitive) process; not an outcome (Kolb, 1984). Thus, much ink should be poured to achieve a transparent approach to the knowledge as something different; mainly as a theoretical object.


Bacon, W., Groundwater-Smith, S., Nash, C. & Sachs, J. (2000). Legitimating Professionalism? Paper presented at the British Educational Research Association Conference, Cardiff University, 7-10 September 2000.

Eraut, M. (1994). Developing Professional Knowledge and Competence. UK: Taylor & Francis.

Freidson, E. (2001). Professionalism: The Third Logic. Cambridge: Polity Press.

Gibbons, M., Limoges, C., Nowotny, H., Schwartzman, S., Scott, P. & Trow, M. (1994). The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies. London: Sage Publication Ltd.

Kolb, D. A. (1984). Experiential Learning: Experience as the Source of Learning and Development. London: Prentice-Hall.

 

 

 

 

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